Aponte-Melendez v. Commissioner of Social Security, No. 3:2008cv01141 - Document 14 (D.P.R. 2009)

Court Description: OPINION AND ORDER. The instant case is REMANDED. Signed by Judge Salvador E Casellas on 9/24/2009.(LB)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 HECTOR L. APONTE MELENDEZ Plaintiff 5 v. 6 COMMISSIONER OF SOCIAL SECURITY (MICHAEL J. ASTRUE) 7 Civil No. 08-1141 (SEC) Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 OPINION AND ORDER This is an action brought under § 205(g) of 42 U.S.C. § 405(g), the Social Security Act. Plaintiff Hector L. Aponte Melendez ( Plaintiff or Aponte ) seeks review of the Commissioner of Social Security s ( the Commissioner ) denial of his application for disability and disability insurance benefits (Docket # 1). The Commissioner of the Social Security Administration ( SSA ) filed a Memorandum of Law in support of the decision to deny benefits (Docket # 12), and Plaintiff filed his own Memorandum of Law (Docket # 9). After reviewing the parties filings, and the applicable law, the case is REMANDED for an additional explanation or clarification of the Administrative Law Judge s ( ALJ ) decision. Factual and Procedural Background On February 17, 2006, the ALJ rendered a final decision denying Plaintiff s application for disability and Social Security disability insurance benefits. T.R. at 29-33. On February 24, 2006, Plaintiff filed a request for review before the SSA s Appeals Council, and submitted additional evidence before the same, including a questionnaire completed by a General Practitioner with a signature but no legible name, progress notes from the Ponce School of Medicine, for the period from May 2005 through October 2007, a medical certificate dated October 23, 2007 from Dr. Luis A. EscabÃ ( Dr. EscabÃ ), among other documents. The Appeals 2 1 Civil No. 08-1141 (SEC) 2 Council denied Plaintiff s request for review. T.R. at 6. On February 1, 2008, Plaintiff filed a 3 petition seeking judicial review of the Commissioner s final decision. Docket # 1. 4 Standard of Review 5 The scope of our judicial review of a Commissioner s final decision is limited both by 6 statute and case law. See 42 U.S.C. §405(g). Section 405(g) provides that the findings of the 7 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . . In 8 Richardson v. Perales, 402 U.S. 389 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 9 U.S. 197 (1938)), the United States Supreme Court defined substantial evidence as more than 10 a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate 11 to support a conclusion. Id. at 401; see also Tsarelka v. Secretary of H.H.S., 842 F. 2d 529, 534 12 (1st Cir. 1987); Chaparro v. Massanari, 190 F. Supp. 2d 260, 262 (D.P.R. 2002). Moreover, the 13 First Circuit has held that this determination of substantiality must be made on the record as a 14 whole. See Ortiz v. Secretary of H.H.S., 955 F.2d 765, 769 (1st Cir. 1991). Courts have found 15 that written reports submitted by non-examining physicians who merely reviewed the written 16 medical evidence are not substantial evidence, although these may serve as supplementary 17 evidence for the ALJ to consider in conjunction with the examining physician s reports. Irrizary 18 v. Commissioner of Social Security, 253 F. Supp. 2d 216, 218 (D.P.R. 2003). Lastly, it is the 19 Secretary s responsibility to choose between conflicting evidence. Burgos LÃ³pez v. Secretary 20 of H.H.S., 747 F.2d, 37, 41 (1st Cir. 1984); see also Tremblay v. Secretary of H.H.S., 676 F. 2d 21 11, 12 (1st Cir. 1982); Freeman v. Barnhart, 274 F.3d at 609 (citing Seavey v. Barnhart, 276 F.3d 22 1, 15 (1st Cir. 2001). 23 To establish entitlement to disability benefits, the burden is on the claimant to prove that 24 he is disabled within the meaning of the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 25 146-47, n.5 (1987). It is well settled law that a claimant is disabled under the Social Security Act 26 if he is unable to engage in any substantial gainful activity by reason of any medically 3 1 Civil No. 08-1141 (SEC) 2 determinable physical or mental impairment which can be expected to result in death or which has 3 lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 4 § 423 (d)(1)(a). A claimant is unable to engage in any substantial gainful activity when the 5 claimant is not only unable to do his previous work but cannot, considering age, education, and 6 work experience, engage in any other kind of substantial gainful work which exists in the national 7 economy, regardless of whether such work exists in the immediate area in which he lives, or 8 whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 9 42 U.S.C. § 423(d)(2)(a). In making this determination, the ALJ employs a five-step sequential 10 evaluation process. 20 C.F.R. § 404.1520; see, e.g., Goodermote v. S.H.H.S., 690 F.2d 5, 6-7 (1 st 11 Cir. 1982). However, all five steps are not applied to every applicant, as the determination may 12 be concluded at any step along the process. Freeman v. Barnhart, 274 F.3d 606, 608 (1 st Cir. 13 2001). The First Circuit has held that [t]he applicant has the burden of production and proof at 14 the first four steps of the process. If the applicant has met his or her burden at the first four steps, 15 the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs 16 in the national economy that the applicant can still perform. Id. 17 The five-step inquiry made by the ALJ in determining whether a claimant is disabled is as 18 follows. First, the ALJ asks: is the claimant currently employed? If so, she is not disabled. If she 19 is not, then the ALJ must turn to the second question: does the claimant have a severe impairment 20 (one which significantly limits his ability to perform work-related functions)? If not, then she is 21 not disabled. If so, the ALJ must ask: does the claimant have an impairment equivalent to those 22 contained in the regulations Appendix 1 to Subpart P of Part 404 ( Appendix 1 )? If so, then she 23 is automatically rendered disabled. If not, then the ALJ must determine if the claimant s 24 impairment prevents her from performing work that he has done in the past. If the ALJ determines 25 that the claimant cannot perform her past work, then he must determine if claimant s impairment 26 will prevent him from performing other work of the sort found in the national economy. If the 4 1 Civil No. 08-1141 (SEC) 2 claimant cannot perform any such work, she is disabled. If she is capable of performing work 3 available in the economy, then she is not disabled under the Social Security standards. See 4 Goodermore, 690 F. 2d at 6-7; Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). 5 As stated above, the burden is on the claimant to establish that he is disabled, and unable 6 to return to his past work. Id. at 7. However, if the claimant meets this burden, then it is the 7 Secretary s burden to show that there are other jobs in the national economy that the claimant can 8 perform, notwithstanding his disability. Id.; see also Seavey v. Barnhart, 276 F.3d at 5 (1 st Cir. 9 2001); Torres v. Secretary of H. H. S., 677 F. 2d 167, 168 (1st Cir. 1982); GonzÃ¡lez-AlemÃ¡n v. 10 Secretary of H.H.S., 86 F. 3d 1146, 1996 U.S. App. LEXIS 11655 (1st Cir. 1996). If the 11 applicant s limitations are exclusively exertional, then the Commissioner can meet this burden 12 through the use of a chart contained in the Social Security regulations, referred to as Grids, which 13 are basically a matrix combining different permutations of the four essential factors set out in 14 the statute (age, education, work, experience, and residual work capacity) and stating, as to each 15 combination, whether a claimant with those characteristics is disabled or not disabled. Seavey, 16 276 F.3d at 5; VÃ¡zquez v. Secretary of H.H.S., 683 F. 2d 1, 2 (1st Cir. 1982). 17 However, if the claimant has non-exertional impairments, the Grid may not accurately 18 reflect the availability of suitable jobs. GonzÃ¡lez-AlemÃ¡n, 1996 U.S. App. LEXIS 11655 at * 2. 19 That is, considering that the Grid is based on a claimant s exertional capacities, it can only be 20 applied when a claimant s non-exertional limitations do not significantly impair claimant s ability 21 to perform at a given exertional level. Rivera-Rivera v. Barnhart, 330 F. Supp. 2d 35, 37 (D.P.R. 22 2004)(citing Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994)). Therefore, in cases where a 23 nonexertional impairment significantly affects claimant s ability to perform the full range of jobs 24 he is otherwise exertionally capable of performing, the Secretary must carry his burden of proving 25 the availability of jobs in the national economy by other means, typically through the use of a 26 vocational expert. Miranda-Monserrate v. Barnhart, 520 F. Supp. 2d 318, 325 (D.P.R. 5 1 Civil No. 08-1141 (SEC) 2 2007)(internal citations omitted). However, should a non-exertional restriction be found to 3 impose no significant limitation on the range of work a claimant is exertionally able to perform, 4 reliance on the Grid remains appropriate. Rivera-Rivera, 330 F. Supp. 2d at 37-38. 5 In considering whether a claimant s residual work capacity is reduced by non-exertional 6 limitations (i.e. a mental impairment), the Secretary must assess the claimant s mental capability 7 for unskilled work, and his ability to cope with the demands of any work environment. See 8 Miranda-Monserrate, 520 F.Supp. 2d at 326; Irlanda v. Secretary of H.H.S., 955 F. 2d 765, 769- 9 770 (1st Cir. 1991). The first inquiry focuses on whether a claimant is able to understand, 10 remember, and carry out simple instructions, respond appropriately to the normal work 11 environment, and to deal with the changes in a routine work situation. Id. The second inquiry 12 requires determining whether a claimant can be punctual, attend work on a regular basis, accept 13 supervision, and remain in the work place for an entire day. Id. at 326. 14 Finally, an ALJ is a lay fact finder that lacks the expertise to make a medical conclusion, 15 and, as such, he cannot interpret raw, technical medical data. Irrizary, 253 F. Supp. 2d at 219 16 (citing Rivera-Torres v. Secretary of H. H. S., 837 F. 2d 4, 7 (1st Cir. 1988); BerrÃos v. Secretary 17 of H. H. S., 796 F. 2d 574, 576 (1st Cir. 1986)). 18 Factual and Procedural Background 19 Pursuant to the record before this Court, Plaintiff was thirty years old on August 20, 2001, 20 the alleged onset date, and age thirty-five when his insurance coverage lapsed on December 31, 21 2006. Plaintiff has a twelfth-grade education and had previously worked as a messenger, a security 22 guard, and a road maintenance worker. T.R. at 80, 132-137. 23 Physical Impairment 24 On August 20, 2001, Plaintiff sought treatment at Puerto Rico Medical Center for a injury 25 he suffered to his right upper arm after falling out of a car s passenger side. T.R. at 179. Therein 26 he was diagnosed with a fracture to his right radius, for which he underwent a closed reduction, 6 1 Civil No. 08-1141 (SEC) 2 with external fixation of the right radial fracture. T.R. at 177, 175, 180, 186. On August 24, 2001, 3 Plaintiff was discharged from Puerto Rico Medical Center. T.R. at 174. On October 14, 2001, 4 Plaintiff s external fixer was removed. T.R. at 171-172. A follow up visit held on December 19, 5 2001, showed Plaintiff s range of motion of his right wrist was overall good, and his pain level 6 was low. T.R. at 170. Notwithstanding, on April 24, 2002, Plaintiff returned complaining of pain, 7 and limited range of motion, and as a result, he was referred to physical therapy. T.R. at 168. 8 On August 30, 2002, Plaintiff was evaluated by Dr. Cesar CintrÃ³n Valle, orthopedic 9 surgeon. T. R. at 191-205. Dr. CintrÃ³n found some level of atrophy in the right arm, and some 10 level of swelling of the wrist. T.R. at 196. However, Dr. CintrÃ³n stated that Plaintiff was not 11 cooperative, insofar as he did not make the maximum effort to move the articulations, neither 12 did he make a considerable effort when the instruments to test grip and fist strength were 13 offered. Id. Dr. CintrÃ³n also noted no deformity of the forearm or fingers pain, tenderness, 14 swelling, or nodes in the joints; nor did he notice any sensory changes or atrophies. T.R. at 203. 15 He further concluded that Plaintiff was able to grip, grasp, pinch, tap, oppose fingers, button his 16 shirt, pick up a coin, and write. Id. Additionally, Dr. CintrÃ³n noted that there was no post- 17 traumatic Arthritis of the Carpal bones, and that the fracture of the Right Distal Radius was 18 totally consolidated. T.R. at 199. Finally, Dr. CintrÃ³n stated that, in his opinion, Plaintiff was able 19 to sit, stand, walk, lift, carry loads, handle objects, hear, speak, and travel; and that he did not need 20 any further treatment besides physical therapy. T.R. at 200 21 After Plaintiff s administrative hearing, the ALJ referred Plaintiff to another orthopedic 22 evaluation with Dr. CintrÃ³n. T.R. at 344. The evaluation took place on June 10, 2005, whereupon 23 Dr. CintrÃ³n once again noted no atrophy of the wrist, and that Plaintiff was able to pinch, oppose, 24 and grip. T.R. 288-289. However, Dr. CintrÃ³n noticed a mild edema of the same wrist. Id. In the 25 same evaluation, X-rays showed a completely healed fracture of the distal Radius with no 26 7 1 Civil No. 08-1141 (SEC) 2 deformity, infection, or post traumatic Arthritis of the wrist. Id. As such, Dr. CintrÃ³n s final 3 diagnosis was that Plaintiff had a [c]ompletely healed fracture of the right distal radius. Id. 4 Mental Impairment 5 On December 10, 2002, a Disability Determination Services clinical psychologist, Dr. 6 Jeanette Maldonado, Psy.D., rendered Plaintiff s mental residual function capacity assessment. 7 T.R. at 233-235. Therein, Dr. Maldonado noted that Plaintiff was able to understand, remember, 8 perform simple tasks, meet weekly demands, and concentrate for more than a two-hour period. 9 T. R. at 235. Additionally, Dr. Maldonado found that Plaintiff can tolerate a normal work 10 environment, including supervision, decision making, and interactions with peers. Id. 11 On August 15, 2003, Plaintiff was referred to the Division of Behavioral Health at the 12 Ponce School of Medicine, exhibiting symptoms of hostility, trouble sleeping, visual and auditory 13 hallucinations, and trouble with memory. T.R. at 265, 274. The evaluator, Jacqueline Santiago 14 Ramos, stated that the expected form of treatment is [t]o stabilize symptoms and sleep pattern. 15 T.R. at 274. On August 22, 2003, Plaintiff went to the Division of Behavioral Health complaining 16 of waking frequently during the night, and his wife reported that Plaintiff exhibited nervousness 17 and anxiety. T.R. at 275. At this evaluation, Plaintiff was found to be alert and oriented, but 18 complained of feeling anxious and irritable, and his attention and concentration were decreased. 19 Id. At this time, Plaintiff was diagnosed with Major Mood Disorder, and as being depressed. T.R. 20 at 277. He was assigned a Global Assessment of Functioning (GAF) score of 60-65, which 21 denotes mild to moderate symptoms. Id. 22 On December 23, 2003, Plaintiff once again reported difficulty sleeping, although he was 23 alert and oriented, he denied having visual and audible hallucinations, and was overall cooperative. 24 T.R. at 261. However, on July 2, 2004, despite being alert and oriented, Plaintiff complained of 25 visual and audio hallucinations, as well as anxiety. T.R. at 258. On February 8, 2005, Plaintiff 26 complained of insomnia and anxiety, despite appearing alert and oriented. T.R. at 255. On March 8 1 Civil No. 08-1141 (SEC) 2 3, 2005, the Behavioral Health Clinic at the Ponce School of Medicine reiterated its Major Mood 3 Disorder, and depression diagnosis. T.R. at 251. 4 On November 3, 2004, Plaintiff was evaluated by psychiatrist Dr. Edelmiro Rodriguez. 5 T.R. 246-250. Plaintiff s wife answered most of Dr. Rodiguez s questions, since Plaintiff did not 6 speak, or reply to questions. T.R. at 246. Plaintiff s wife claimed that Plaintiff suffered from 7 irritability, poor motivation toward speaking most of the time, loss of hair, poor appetite, 8 insomnia, poor noise tolerance, isolation, crying and right arm pain. Id. During the evaluation, 9 Dr. Rodriguez noted that Plaintiff appeared sad, his attention was poor, and he did not seem 10 attentive to what was being asked and explained. T.R. at 246. As a result of said evaluation, Dr. 11 Rodriguez ruled out Major Depressive disorder, recurrent type. T.R. at 247. 12 After Plaintiff s administrative hearing held on March 4, 2005, the ALJ also referred 13 Plaintiff to another psychiatric evaluation. T.R. at 344. On June 16, 2005, psychiatrist Dr. 14 Rainaldo Kianes, examined Plaintiff. T.R. at 285-287. During said evaluation, Plaintiff stated that 15 he could not remember things, and could not answer any further questions. T.R. at 285. As such, 16 Dr. Kianes interviewed Plaintiff s wife in his presence. Id. Plaintiff s wife stated that since [the 17 2001 car accident he] has never been what he used to be. Id. She again stated that he still suffered 18 from visual and audible hallucinations, had sleep disturbances, had to be told to bathe, and didn t 19 do anything. Id. Dr. Kianes also noted that Plaintiff was non-cooperative, and did not make eye 20 contact with him during the evaluation and interview. T.R. at 286. As such, he was not able to 21 evaluate Plaintiff s speech, mood, affect, or thoughts. Id. 22 Applicable Law and Analysis 23 Claimant alleges that the ALJ erred (1) in basing his conclusion on his own medical 24 opinion, despite not being a qualified medical expert, and (2) in concluding that Claimant s 25 illnesses were not severe enough to meet the requirements of Listing 12.04. Docket # 9. In 26 support thereof, Claimant avers that insofar as he meets the requirements of Listing 12.04 9 1 Civil No. 08-1141 (SEC) 2 (affective disorders), he is disabled for purposes of social security disability benefits. In 3 opposition, Defendant argues that pursuant to the medical reports cited by Plaintiff, he does not 4 meet the requirements of Listing 12.04. Specifically, Defendant alleges that Plaintiff has not met 5 his burden of proving that his impairment met, or equaled, those in Listing 12.04, and that he 6 could not perform his past work as a security guard. 7 This Court must determine whether the Commissioner s decision that Plaintiff failed to 8 establish that he was disabled from August 20, 2001 through December 31, 2006, is supported 9 by substantial evidence. Per the ALJ s decision, Plaintiff met the insured status requirements 10 through December 31, 2006, and had not engaged in substantial gainful activity since 2001. 11 Plaintiff does not contest the aforementioned conclusions. Instead, Plaintiff argues that despite 12 concluding that he suffers from major depressive disorder and trauma to the right arm, the ALJ 13 found that Plaintiff did not have an impairment, or combination of impairments, that met or 14 medically equaled one of the listed impairments at Appendix 1. Plaintiff argues that upon finding 15 that he had a severe impairment within Listing 12.04, the ALJ s inquiry ended, and he was entitled 16 to disability benefits.1 17 18 19 20 21 22 23 24 25 26 Plaintiffs point to the June 21, 2002 note by APS Healthcare whereupon the examining physician identified depression, anxiety, and anger, auditory hallucinations, irritable mood, and that Plaintiff wished to be dead. T.R. at 155-163. Therein, the physician diagnosed Major Depression, and prescribed certain medications. Id. Plaintiff further argues that Dr. Edelmiro RodrÃguez also diagnosed Major Depression. However, this Court notes that on the November 3, 2004, Dr. RodrÃguez ruled out said condition, and noted that the mental status could not be determined because Plaintiff did not speak or reply to questions. T.R. at 247. In support of his argument, Plaintiff also refers to a medical statement dated January 17, 2006, signed by an unidentified general practitioner, determining that he suffers from extreme limitations which impede his ability to work. T.R. at 300-311. Furthermore, he points to Dr. EscabÃ s October 23, 2007 report. However, said report was rendered after the ALJ s decision. Therefore, it was not considered by the ALJ at that time. Since this Court may review an ALJ s decision based solely on the evidence presented at the time of the decision, Dr. EscabÃ s report cannot be considered by this Court. Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001). 1 1 Civil No. 08-1141 (SEC) 10 2 After reviewing the record, this Court notes that albeit the ALJ found that Plaintiff suffers 3 from major depressive disorder and trauma to the right arm, the five step analysis requires that 4 the ALJ also determine whether the claimant has an impairment equivalent to those contained in 5 Appendix 1. Upon concluding that Plaintiff did not have one of the listed impairments in Appendix 6 1, the ALJ held that Plaintiff was not disabled, and in turn denied his petition for disability 7 benefits. Notwithstanding, the ALJ s decision fails to point out the evidence which supports said 8 finding. Specifically, from the decision, this Court cannot discern which medical evaluations and 9 documents were taken into consideration when applying the five-factor test. The ALJ only cites 10 Dr. Cesar CintrÃ³n ( Dr. CintrÃ³n ), and Dr. Edelmiro RodrÃguez s ( Dr. RodrÃguez ) findings. 11 However, he also mentions that [a]nother pyschiatrist stated that the claimant could not be 12 evaluated because the claimant was uncooperative, but fails to provide his name, or a reference 13 to the record. T.R. at 32. 14 Moreover, although the ALJ notes that he considered all symptoms, and opinion evidence 15 in accordance with the SSA s regulations, his decision is absent of references to the record to 16 sustain his finding that the claimant has residual functional capacity for work activities except 17 for heavy lifting and carrying or complex tasks. Specifically, Dr. RodrÃguez did not make any 18 specific recommendations on this front since he noted that Plaintiff failed to participate, or speak 19 during the examination. Notwithstanding, Dr. CintrÃ³n stated that Plaintiff was not disabled to sit, 20 to stand, to walk, to lift and carry loads, to handle objects, to hear, to speak, to travel. T.R. at 200. 21 Thus after reviewing the record, this Court cannot ascertain the basis for said conclusion. 22 Moreover, this Court may review an ALJ s decision based solely on the evidence presented 23 to the ALJ, therefore, additional evidence brought before the Appeals Council cannot be 24 considered when reviewing the ALJ s decision, i.e. the questionnaire completed by a General 25 Practitioner with a signature but no legible name, progress notes from the Ponce School of 26 11 1 Civil No. 08-1141 (SEC) 2 Medicine, for the period from May 2005 through October 2007, and the medical certificate dated 3 October 23, 2007 from Dr. Luis A. EscabÃ. Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001).2 4 The Supreme Court has held that [i]f the record before the agency does not support the 5 agency action, if the agency has not considered all relevant factors, or if the reviewing court 6 simply cannot evaluate the challenged agency action on the basis of the record before it, the 7 proper course, except in rare circumstances, is to remand to the agency for additional 8 investigation or explanation. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). 9 Thus when the reviewing court cannot evaluate the challenged action on the basis of the record 10 before it, it is impeded from conducting a de novo inquiry into the matter being reviewed, and 11 to reach its own conclusions based on such an inquiry. Id. The First Circuit adopts this reasoning, 12 upon finding that [w]hen an agency has not considered all relevant factors in taking action, or has 13 provided insufficient explanation for its action, the reviewing court ordinarily should remand the 14 case to the agency. Seavey, 276 F.3d at 12. 15 In light of the above, this Court finds that the basis for the ALJ s decision is unclear, and 16 further explanation of his decision is warranted in order to appropriately review the decision. This 17 Court notes that, at this stage, no determination is made as to whether the ALJ s decision is 18 supported by substantial evidence, since that inquiry is appropriate after the ALJ properly 19 explains or clarifies the basis for his decision. 20 Conclusion 21 Based on the foregoing, the case is REMANDED with instructions to the Commissioner 22 23 for additional explanation or clarification of the ALJ s decision. IT IS SO ORDERED. 24 25 This Court notes that the Appeals Court provided no further analysis of the evidence before the ALJ, or the additional evidence provided by Plaintiffs on appeal. 2 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 12 Civil No. 08-1141 (SEC) In San Juan, Puerto Rico, this 24th day of September, 2009. S/Salvador E. Casellas SALVADOR E. CASELLAS U.S. Senior District Judge

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